What’s It Worth: Will New O-1 Visa Policy Reflect Customer Feedback?

The USCIS Office of Public Engagement recently hosted a teleconference with stakeholders regarding the evidentiary standards of the O-1 nonimmigrant visa classification. USCIS’ stated goal for the April 28, 2011 conference call was to solicit comments and suggestions from immigration practitioners on how the immigration agency should evaluate evidence that is submitted in support of O-1 visa petitions.

According to an Office of Public Engagement representative, this is an important step in the agency’s long term goal of planning a comprehensive memo offering guidance on evidentiary standards. On this point, USCIS clarified that the memo would address the O-1 visa’s evidentiary standards within the current regulatory framework, as there is no intent to alter the regulations themselves.

While the meeting offered practitioners the opportunity to voice concerns, an open question is whether this and similar forums produce any tangible improvements for customers. Billed as “an opportunity to hear from stakeholders,” the conference may have been useful for USCIS officials, but did not afford participants a platform to discuss and brainstorm with USCIS officials on improvements to the policy memorandum. USCIS routinely responded to comments during the session only by saying that the conference was an opportunity to receive feedback and it would take feedback into account in drafting the new policy guidance. Stakeholders may have found the meeting more productive if it involved engagement with officials and a greater opportunity for dialogue versus one way information flow.

To initiate the discussion, USCIS reps first summarized the three types of “O” visas and standards:

"extraordinary achievement" in the motion picture or television industry (O – 1B)

"distinction" in the arts (O – 1 A).

The teleconference lines were then opened to allow stakeholders to offer their input. Practitioners voiced many concerns about the evaluation of evidence submitted and how the adjudicators are interpreting the regulations, noting — it is important for adjudicators to have flexibility versus bright line rules and “check box” forms. A synopsis of the comments from stakeholders:

Where are they getting this stuff? Some USCIS adjudicators seem to simply make up requirements for the visa that are not required by regulation or law or they pull standards from one category into adjudication of an O-1 visa in another category.

We Have Entered the 21st Century? In many fields, the O-1 visa criteria are easily applied but in other fields, measures of achievement do not fit neatly into the evidence categories. The question arises, to what extent can we utilize comparable evidence in cases such those involving artists whose work cannot be displayed visually or when the best evidence is electronic media in the form of blogs or YouTube video? What about the case of a famous comedian whose measure of success may not conform to the enumerated categories, especially when interpreted narrowly. In those cases, practitioners are forced to rely on comparable evidence.

Never the Twain Shall Meet. How is “field of endeavor” defined? For example, in the field of arts, distinction is defined by “a high level of achievement in the field of the arts” evidenced by a degree of skill and recognition substantially above that ordinarily encountered. Does this mean that a renowned salsa dancer can come to the U.S. only to perform or can they also come to teach salsa? Can a Japanese professional baseball player only come to the U.S. to compete or could they come on an O-1 visa to coach baseball?

All Evidence is Not Created Equal. Adjudicators give less weight to testimonial evidence in the form of support letters than to documentary evidence. Is evidence in one category weighed differently than others?

Compare Apples to Apples and Clowns to Clowns. One factor demonstrating extraordinary ability is evidence that the alien has commanded a high salary in relation to others in the field. On this point, one stakeholder noted that the salary of a petitioner residing outside the U.S. should be compared to salaries of others in the same country or region since salaries for the same profession vary widely. The average salary for an electrical engineer with a master’s degree may be US$14,000 in India but US$99,000 in the United States. A related concern involved a case where the salary of an extraordinary ability clown was compared with non-clown employees in his company rather than other extraordinary clowns.

USCIS Director Alejandro Mayorkas and the Office of Public Engagement are to be commended for their efforts to solicit stakeholder comments as they embark on the herculean task of consolidating and revising policy guidance. At the same time, a true show of transparency will require more than simply soliciting comments. Indeed, USCIS has an opportunity to demonstrate that it is responding to stakeholder feedback by incorporating the valuable suggestions offered by experienced practitioners into the resulting policy memorandum on evidentiary standards for the “O” visa. A new policy memo on the “O” visa that accounts for stakeholder comments will affirm the agency’s stated goal of collaboration and dialogue with its customers.

About The Author

Vera L. Fry is a Partner at Goel & Anderson. She advises clients on complex legal matters involving all of the major U.S. immigrant and nonimmigrant visa classifications including PERM, H-1B, L-1A, L-1B, E-1, E-2, and B-1 issues. Vera began practicing immigration law in 1999 when she was selected to be an Honor Law Graduate in the highly competitive U.S. Department of Justice Attorney General's Honors Program. She served as Assistant District Counsel with the former Immigration and Naturalization Service, advising operational units and litigating a wide variety of asylum, removal and deportation cases in California and Arizona immigration courts. Subsequently, she lived overseas in Japan for eight years, serving as the U.S. immigration law consultant to a Japanese law firm. Vera later opened and operated her own Japanese registered foreign law office as a registered foreign attorney (gaikokuhou jimu bengoshi) and assisted Japanese companies with their business immigration needs. Additionally, she taught U.S. immigration law in Japan at the University of the Ryukyus, Graduate School of Law. Vera also studied commercial dispute resolution at the Law Society of Hong Kong and successfully competed in the Hong Kong International Arbitration Centre, Mediator Accreditation Process, to be certified as a mediator. She can be contacted via email at vera.fry@goellaw.com

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